Work on irregular working hours is compensated. Irregular working hours: nuances of the work schedule for special employees

Irregular working hours involve working outside working hours. As a rule, they are warned that work will be carried out in this mode before employment. Indeed, there are positions in which it is not always possible to distribute the workload evenly throughout the working day. Unfortunately, the norms of the Labor Code still do not clearly define the procedure for such work, which leads to mistakes and sometimes abuse on the part of employers. To ensure that there are as few errors as possible, you need to understand some nuances.

Working conditions during irregular working hours

By virtue of Art. 97 of the Labor Code of the Russian Federation, the employer has the right, in the manner prescribed by the Labor Code, to involve an employee in work beyond the working hours established for this employee in accordance with the Labor Code of the Russian Federation, others federal laws and other regulatory legal acts of the Russian Federation, collective agreements, agreements, local regulations, employment contracts:

for overtime work (Article 99 of the Labor Code of the Russian Federation);

if the employee works on irregular working hours (Article 101 of the Labor Code of the Russian Federation).

According to Art. 101 of the Labor Code of the Russian Federation is a special work regime, according to which individual employees may, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the working hours established for them. The list of positions with irregular working hours is established by a collective agreement, agreements or local normative act adopted taking into account the opinion of the representative body of workers.

Based on this formulation, the following mandatory conditions for working in irregular working hours can be identified:

1. The list of positions requiring work in this mode is established by a collective agreement, agreements or local regulations.

2. Such work is carried out by order of the employer.

3. Such work is carried out sporadically.

In addition, in accordance with Part 2 of Art. 57 of the Labor Code of the Russian Federation, the condition for irregular working hours is enshrined in employment contract with an employee.

Note: if a regime of irregular working hours is introduced after concluding an employment contract with an employee, he is first notified of this no later than two months in advance, then an additional agreement to the employment contract is concluded to change the working hours, and an order is issued on the basis of the agreement. Such changes are made by agreement of the parties (Article 72 of the Labor Code of the Russian Federation) or by the employer in unilaterally(Article 74 of the Labor Code of the Russian Federation).

Who can work irregular hours?

The employer has the right to determine the list of positions with irregular working hours independently, recording in collective agreement, agreement, local regulatory act, which is adopted taking into account the opinion of the representative body of workers.

the list of positions for FSS employees with irregular working hours was approved by Order of the FSS of the Russian Federation dated June 22, 2009 No. 146;

list of positions of employees of the Pension Fund system with irregular working hours - Resolution of the Board of the Pension Fund of the Russian Federation dated November 1, 2007 No. 274p.

These lists include quite a lot of positions - management, specialists, and service personnel.

According to Decree of the Government of the Russian Federation dated December 11, 2002 No. 884 (hereinafter referred to as Decree No. 884), the list of positions of employees with irregular working hours of federal government institutions includes management, technical and economic personnel and other persons whose work during the working day cannot be accurately recorded, persons who distribute work time at their own discretion, as well as persons whose working time, due to the nature of the work, is divided into parts of indefinite duration. A specific list of positions for such employees is established by the internal labor regulations or other regulatory act of the institution. If these regulations are absent, the employer independently adopts a local act and establishes a list of positions with irregular working hours at its own discretion and with the consent of the trade union.

There are no restrictions on the positions that may be included in the list. As for the status of workers occupying these positions, not everything is simple: not everyone can establish irregular working hours. Despite the fact that there is no special prohibition in the Labor Code, there are other rules, in particular, regulating the second type of work outside the normal working hours - overtime work. You cannot attract him:

pregnant women (Article 259 of the Labor Code of the Russian Federation);

workers under the age of 18 (Article 99 of the Labor Code of the Russian Federation);

workers during the apprenticeship period (Article 203 of the Labor Code of the Russian Federation).

Disabled people, women who have children under three years of age, fathers raising children without a mother, guardians (trustees) of minors are allowed to work overtime only with their written consent, introducing them to their right to refuse such work (Articles 99, 259 of the Labor Code of the Russian Federation).

There is an opinion that it is impossible to establish irregular working hours for employees who have reduced working hours (disabled people, minors, working in harmful and (or) dangerous conditions, etc.). Some judges share this opinion. In particular, the judges of three instances, when considering the case, concluded that a disabled employee who has been assigned reduced working hours cannot be assigned an irregular working day, regardless of the employee’s consent or disagreement (Cassation ruling of the Moscow City Court dated October 23, 2015 No. 4g/ 2-10554/2015).

At the same time, it should be noted that labor legislation does not prohibit involving disabled workers in overtime work with their written consent.

Officials of the Ministry of Labor, in turn, answering the question about the establishment of irregular working hours for workers in harmful and (or) dangerous conditions, said: since the establishment of reduced working hours is a guarantee for persons employed in work with harmful and (or) dangerous conditions. hazardous conditions labor, if an irregular working day is established for this category of workers, the said guarantee actually loses its purpose - reduction negative impact per person harmful conditions labor. Accordingly, an irregular working day can be established for such employees only if they are not given a reduced working time.

Despite the above, we believe that since there is no direct prohibition on establishing irregular working hours for employees with reduced working hours, in some cases (with the written consent of the employees) irregular working hours can be established, in particular, for the same disabled employee. Perhaps the legislator will eliminate this gap, as he eliminated it for people who work part-time. Now part 2 art. 101 of the Labor Code of the Russian Federation clearly establishes that for those working part-time, an irregular working day can be established only if the agreement of the parties to the employment contract provides for a part-time working week, but with a full working day (shift).

Question:

Can a part-time worker have an irregular working day?

Answer:

Here it is worth noting the opinion of some experts, based on the fact that part-time work, by force of law, is part-time work. Based on this, the part-time worker by virtue of Part 2 of Art. 101 of the Labor Code of the Russian Federation can work in irregular working hours only if the agreement of the parties to the employment contract establishes a part-time working week with a full working day.

We cannot agree with this position. According to the norm of Part 1 of Art. 284 of the Labor Code of the Russian Federation, the duration of working hours when working part-time should not exceed four hours a day. On days when the employee is free from performing work duties at his main place of work, he can work part-time full time (shift). During a month (another accounting period), the duration of working time when working part-time should not exceed half the monthly standard working time (standard working time for another accounting period) established for the corresponding category of workers.

However, part-time work is not part-time work.

Therefore, we believe that since there is no prohibition on part-time work during irregular working hours in the Labor Code, it can be established for such employees as well. And the compensation provided for work in the appropriate mode must be provided to them in full, as well as to the main employees (Part 2 of Article 287 of the Labor Code of the Russian Federation).

Working hours during irregular hours

Let us remind you that, by virtue of Art. 101 of the Labor Code of the Russian Federation, if an irregular working day is established, the employee works outside normal working hours on the basis of the employer’s order and periodically.

And here two questions arise at once, which at the moment remain open:

1. In what form should the order be issued?

2. What does “occasionally” mean?

To answer the first question, let us turn to the Labor Code, which often uses the term “instruction” along with the name “order”. For example, according to Part 6 of Art. 193 of the Labor Code of the Russian Federation, the order (instruction) of the employer to apply a disciplinary sanction is announced to the employee against signature. That is, both an order and a directive are understood as a written act issued by the employer in the person of the head of the organization.

However, unlike an order, a directive - despite the fact that it also has the nature of a legal act - can have both written and oral form and be issued not only by the head of the organization, but also by the heads of structural divisions within their competence. Within the meaning of Part 1 of Art. 101 of the Labor Code of the Russian Federation, the written form of the order is not implied; accordingly, it can be given orally. And in practice, since the employee’s written consent to each engagement is in excess of normal duration There is no need for a working day; it is easier to give verbal orders.

But we note: by issuing written orders, the employer will be able to subsequently confirm that he did not abuse his right and involved employees in such work periodically, and not constantly. In addition, he will be able, having written evidence in hand, to bring the employee to disciplinary liability if he refuses to work beyond the norm.

In any case, an order made orally does not entail a violation of the procedure for working on irregular working hours.

Unlike the form of the order, the second question is of fundamental importance and if it is determined that the employee constantly overworks, the employer may be required to pay for such work as overtime.

To involve an employee occasionally means irregularly, not constantly, from time to time, from case to case. Of course, special certainty this characteristic does not contribute. Moreover, there is no established maximum number of extra hours of work. The absence of clear restrictions (as with overtime work) in practice leads to an unreasonable expansion of the scope of application of irregular working hours and, ultimately, to abuse of rights by employers.

Note: the obligation to keep records of hours worked in excess of the norm is not established by law (such work does not apply to overtime). However, since Part 4 of Art. 91 of the Labor Code of the Russian Federation obliges the employer to keep records of the time actually worked by each employee; it is better to keep records of overtime, including in order to confirm its episodic nature. You just need to do this in a separate journal, and not in a time sheet, so that it is not considered overtime.

During irregular working hours, employees are required to comply with internal labor regulations. And as noted in the Letter of Rostrud dated 06/07/2008 No. 1316-6-1, the introduction of such a regime for workers does not mean that they are not subject to the rules determining the start and end times of work, the procedure for recording working hours, etc.

Compensation for irregular work

In accordance with Art. 116 of the Labor Code of the Russian Federation, an employee working on irregular working hours must be provided with additional annual paid leave. The specific duration of such leave is determined by collective agreements or local regulations, which are adopted taking into account the opinion of the elected body of the primary trade union organization. At the same time, the minimum duration of additional paid leave is three calendar days (Article 119 of the Labor Code of the Russian Federation).

Note: Rules for granting annual additional paid leave to employees with irregular working hours in federal government institutions approved by Resolution No. 884 (hereinafter referred to as the Rules).

According to the Rules, the duration of additional leave for relevant positions is established by the internal labor regulations of the institution and depends on the volume of work, the degree of labor intensity, the employee’s ability to perform his job functions outside of normal working hours and other conditions. At the same time, the right to additional leave occurs in an employee regardless of the duration of work under irregular working hours.

Additional leave provided to employees with irregular working hours is summed up with the annual basic paid leave (including extended leave), as well as other annual additional paid leave.

In case of transfer or non-use of additional leave, dismissal, the right to the specified leave is exercised in the manner established by the labor legislation of the Russian Federation for annual paid leave.

There is no provision for the provision of additional leave for irregular working hours in proportion to the time worked in the working year for other employees (not working in federal government institutions). This is indicated in the Letter of Rostrud dated May 24, 2012 No. PG/3841-6-1.

In accordance with Art. 126 of the Labor Code of the Russian Federation, an employee has the right to refuse to use additional leave. In this case, such leave may be replaced monetary compensation.

Note: additional leave is provided to the employee, even if there was no overtime. In this regard, if the employer does not keep track of overtime hours, this should not affect the provision of leave and is not a violation.

Irregular working hours and overtime

Although both irregular working hours and overtime mean working beyond established norm, it's absolutely different concepts. Moreover, the regime of irregular working hours is, of course, more profitable for employers. Sometimes this leads to overtime work being formally replaced by irregular working hours. To show the difference between overtime work and non-standard time, let's present a table.

Question:

Can an employee with irregular working hours be required to work overtime?

Answer:

If the employer understands that the need to work beyond normal working hours occurs more often than occasionally, the employee may be required to work overtime. Despite the fact that in practice such a combination is rare, the Labor Code does not establish any prohibition. Just do this on different days.

The judges do not find anything illegal in such a decision (Appeal ruling of the Trans-Baikal Regional Court dated October 16, 2012 in case No. 33-3284-2012).

To summarize, let us once again note the distinctive features of the irregular working hours regime:

1. This regime is established only for employees included in the list of positions determined by the collective agreement, agreements or local regulations.

2. The conditions for irregular working hours and the duration of additional leave must be established by the employment contract or an additional agreement to it.

3. An employee is involved in such work if necessary and occasionally.

In addition, remember that it is impossible not to provide additional leave if there were no overtime hours, to provide leave of less than three calendar days, and to establish an irregular day for part-time work.

The employer should also take into account that involving an employee regularly and systematically in performing official duties beyond the established normal working hours may be recognized as overtime work, but only in court. And then the employee will be given additional leave and the employer will be obliged to pay for work above the norm as overtime.

To avoid disputes, it is better to establish in a local act a provision on in what cases the involvement of extra work considered episodic within the framework of irregular working hours. If overtime becomes permanent, the employee can be involved in overtime work with his consent.

Irregular working hours - what does it mean? The answer to this question, which is relevant for the parties to the employment contract, will be given in our article. In addition, we will provide examples from law enforcement practice, as well as an example of the wording of the corresponding condition in an employment contract.

Irregular working hours: application features

According to the peculiarities of the Russian labor community, the concept of an irregular working day (hereinafter - n/r day) is used quite often in practice, but, as a rule, it is incorrect. In fact, the concept of n/r day is replaced by another common definition - overtime work. We'll tell you why this happens further.

Both daytime and overtime work are special working hours. This is work beyond the prescribed duration. The usual working time interval is determined when concluding an employment contract (i.e. it corresponds to a specific position and profession and is agreed upon by the parties to the contract).

IN Labor Code of the Russian Federation irregular working hours(Article 101) is defined as a specific regime associated with performing work outside the standard working hours.

Since under this regime the employee’s work volume and duration of working hours increases, this is what the emphasis is placed on by both the employee and the employer, the above features are missed, and the daily routine turns into overtime work.

Irregular working hours or overtime

The concept and regulation of overtime work in the Labor Code of the Russian Federation is more complete compared to the current day. Both the employee of the enterprise’s personnel service, and the employee himself, often may not give of great importance difference between these 2 types.

Various courts in Moscow and the Moscow region receive many appeals from workers demanding payment for work performed as overtime (appeal rulings of the Moscow City Court dated September 28, 2015 in case No. 33-35352/2015, dated April 24, 2015 in case No. 33-14539/2015 ).

However, overtime work is not only performed with the employee’s consent, expressed in writing (emergency cases when consent is not required are defined in Article 99 of the Labor Code of the Russian Federation), but is also subject to monetary compensation. The law also sets time limits for such work.

Important!Additional pay for time worked is the main difference between working a non-working day and working overtime.

IN Labor Code: Irregular working hours is defined as a too busy schedule and the possibility of involving an employee with such a schedule in overtime work is not allowed. The legislator defined compensation for overtime in this mode in the form of paid leave, and not in monetary terms.

This circumstance does not prevent the employee from receiving monetary compensation if the employee does not take additional leave. Amount of compensation for unused vacation over 28 days can be taken into account by the employer as expenses when calculating income tax (see letter of the Ministry of Finance of Russia dated December 15, 2010 No. 03-03-06/2/212).

Who gets an irregular day?

Decree of the Government of the Russian Federation “On approval of the rules for providing annual additional paid leave to employees with irregular working hours in federal government institutions” dated December 11, 2002 No. 884, as amended on September 30, 2014, can be applied in terms of determining the categories of positions for which a no. day. This:

• management team;
• technical and business personnel;
• persons whose work during the working day cannot be accurately recorded (in some organizations such employees are lawyers);
• persons who distribute working time at their own discretion (freelancers);
• persons whose working time, due to the nature of the work, is divided into parts of indefinite duration (for example, artists, musicians, etc.).

Who is prohibited from working irregular hours?

It is necessary to dwell on the categories of workers for whom the establishment of such a work regime is not allowed. The legislator has not defined a detailed list, however, to ensure the labor rights of workers, it is permissible to apply standards by analogy (Articles 97, 99 of the Labor Code of the Russian Federation).

The day mode is not set:

• For minors.
• Workers during training.
• Pregnant workers. We are talking about the initial introduction of this regime. If an employee expecting a child holds a corresponding position, it is permissible to conclude an additional agreement with her to the employment contract stating that she will be given a normal working day for a specified period. There is no need to exclude this position from the general list.
• Part-time workers.

It is permissible to introduce a special regime for the following categories of persons (the written consent of such persons to establish an irregular working day regime is initially required, as well as, in some cases, a medical certificate):

• employees with disabilities;
• persons raising a child alone until he reaches 14 years of age;
• women with children under 3 years of age;
• guardians of minors.

Irregular working hours - how many hours?

The normal working hours in the Russian Federation assume a 40-hour work week (Article 91 of the Labor Code of the Russian Federation). Most organizations have a 5-day workweek and an 8-hour workday.

Labor legislation does not regulate the maximum number of hours that an employee can work in irregular hours, as well as the frequency of involvement in such work. In connection with this state of affairs, the day is used by an unscrupulous employer as a reason to exploit employees who are forced to perform a larger amount of work for regular remuneration.

Compensation in the form of annual leave (additional and paid) does not depend on whether the employee was involved in work in the appropriate mode during the year or not. Leave is granted in any case.

Conditions for establishing irregular working hours

The conditions for establishing the mode are as follows:

• n/a day is set for specific employees (the employee’s consent is not required);
• work performed during irregular periods must correspond to the employee’s job function;
• implies an increase in the total volume of work (performing a labor function beyond the working hours agreed upon by the parties in the employment contract);
• the increase in the amount of work is episodic and unsystematic in nature (letter of Rostrud dated 06/07/2008 No. 1316-6-1);
• the employee receives additional guarantees provided by law (for example, additional paid leave of at least 3 days, Article 119 of the Labor Code of the Russian Federation).

Workers with n/r daytime, like others, do not work on weekends and holidays. Their involvement in performing labor duties on these days is carried out on general principles with additional payment, unless otherwise specified in the local documents of the organization.

The procedure for registering irregular working hours in an employment contract (sample)

The procedure for introducing a daily routine at an enterprise and establishing it for employees is as follows:

• The positions of employees who may be offered a non-working day regime are determined in a collective agreement, agreement or local regulatory act adopted taking into account the opinion of the trade union (in cases specified in the Labor Code of the Russian Federation).
• Employees become familiar with this local regulatory act against signature.
• An order is issued by the employer to establish a day of work for specific employees and an additional agreement to the employment contract is concluded.
• If an employee first starts work in a position where it is necessary to work on a daily basis, an employment contract with the appropriate condition is immediately concluded with him.

Thus, it is not only possible, but also necessary (for example, if it is impossible to calculate the amount of work) to establish a day in the organization for certain categories of employees. However, in order to eliminate possible disputes, it is necessary to follow the procedure for introducing this special labor regime, including explaining and reminding the employee about the features of such a regime, the terms of payment for work, since the law provides for the administrative responsibility of the employer for violating the procedure for establishing a work day.

Rostrud explained in detail what an irregular working day is and how it should be compensated in accordance with the current version of the Labor Code.
As stated in Letter No. 1316-6-1 dated 06/07/2008, with irregular working hours, employees may be involved in work beyond the established working hours, not systematically, but from time to time and in certain cases.
This mode means that the employee can perform labor functions both before the start of the working day (shift) and after its end. However, he is not required to work on weekly rest days and holidays. And in the event that the category of employees in question is called to work on weekends and non-working holidays, the organization must comply general rules provided for in Art. Art. 113 and 153 of the Labor Code.
Rostrud also reminded that the current version of the Labor Code does not recognize overtime during irregular working hours as overtime work (as was the case in the previous version). Therefore, such work is compensated only by additional vacation. Its duration is determined in the collective agreement or internal labor regulations and cannot be less than three calendar days.

"Russian Tax Courier", 2008, N 17

MYTH ABOUT LONG WORKING DAYS

Irregular working hours are a rather “ancient” Soviet invention. In reference legal systems It’s easy to find regulations establishing rules for working in conditions of irregular working hours, which were adopted back in the 20s of the last century. For example, the Resolution of the People's Commissariat of Labor of the USSR dated February 13, 1928 N 106 “On workers with irregular working hours” has not yet been canceled. However this mode has not lost its relevance: in many employment contracts you can read: “The employee is given an irregular working day.”

The main feature of an irregular working day is the right of the employer to require the employee to stay late after the end of the working day to perform urgent work. At the same time, neither the frequency nor the duration of urgent work is regulated by labor legislation, which, of course, plays into the hands of employers. Although an employee with irregular working hours works in excess of the standard working hours established for him, that is, in most cases beyond 40 hours a week, he does not receive any additional payment or payment for these working hours.

Russians have long been accustomed to the fact that overtime beyond normal working hours for workers with irregular working hours is not overtime and is not subject to increased pay. They got so used to it that they didn’t even notice how the last norm, which gave at least some basis for such a statement, was canceled.

However, this happened not so long ago - on October 6, 2006. On this day, the Federal Law of June 30, 2006 N 90-FZ “On Amendments to Labor Code Russian Federation, recognizing certain normative legal acts of the USSR as no longer in force on the territory of the Russian Federation and some legislative acts (provisions of legislative acts) of the Russian Federation having lost force.”
In principle, even before the adoption of Law N 90-FZ, there were no direct indications in the Labor Code of the Russian Federation that overtime during irregular working hours is not overtime work and is not paid either at the usual or at an increased rate. This provision was also absent from the Labor Code of the Russian Federation, which was in force until February 1, 2002.

In the Labor Code of the Russian Federation, only one article mentioned irregular working hours - Article 68, which established the grounds for granting additional leaves. Its clause 3 obligated employers to provide additional leave to employees with irregular working hours. Paragraph 5 of the aforementioned Decree of the People's Commissariat of the USSR No. 106, which was in force both at that time and now, states that workers who have an irregular working day, like all other workers, are exempt from work on weekends and holidays. Work on such days is paid to employees with irregular working hours according to the general rules.

According to Art. 101 of the Labor Code of the Russian Federation, as amended, in force until October 6, 2006, an irregular working day recognized a special work schedule, according to which individual employees could, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the normal working hours. At the same time Art. 99 of the Labor Code of the Russian Federation defined overtime work as work performed by an employee at the initiative of the employer outside the established working hours, daily work (shift), as well as work in excess of the normal number of working hours during the accounting period.

As you can see, working with irregular working hours fully fit into the concept of overtime work, since the normal working hours are the working hours established for the employee.
However, Art. 119 of the Labor Code of the Russian Federation, which regulates the provision of additional leave to employees with irregular working hours, provided that in the event of non-provision of leave, overtime in excess of normal working hours with the written consent of the employee is compensated as overtime work. It is thanks to Art. 119 of the Labor Code of the Russian Federation, overtime during irregular working hours was not paid as overtime work. If an additional payment should be made when vacation is not provided, then its timely provision frees the employer from the need to pay for overtime during irregular working hours.

All experts commenting on Art. 119 of the Labor Code of the Russian Federation, they agreed that with irregular working hours, overtime in excess of normal working hours in general case compensated by the provision of additional leave. The employer's obligation to pay for overtime as overtime arises only if additional leave is not actually provided and the employee has written a corresponding statement.

Thus, Art. 119 of the Labor Code of the Russian Federation, although indirectly, gave employers the right not to pay for overtime during irregular working hours. However, on October 6, 2006, Law No. 90-FZ came into force, which set out this article in a new edition. The proposal to pay overtime for overtime work during irregular working hours in the event of non-provision of leave disappeared from its text. Now Art. 119 of the Labor Code of the Russian Federation simply indicates the need to provide employees with additional paid leave, which establishes irregular working hours. A Art. Art. 101 and 99 of the Labor Code of the Russian Federation are consistent with each other. Now they are talking about work outside the established working hours for the employee. Compare:
“An irregular working day is a special mode of work, according to which individual employees may, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the established working hours” (Article 101 of the Labor Code of the Russian Federation as amended by Law No. 90-FZ ); and “Overtime work is work performed by an employee at the initiative of the employer outside the working hours established for the employee: daily work (shift), and in the case of cumulative accounting of working hours - in excess of the normal number of working hours for the accounting period" (Article 99 of the Labor Code of the Russian Federation in edition of Law N 90-FZ).

It turns out that overtime during irregular working hours is the same as overtime work. Neither Art. 99, nor art. 101 of the Labor Code of the Russian Federation does not establish any specific features of overtime work for workers with irregular working hours. Article 119 of the Labor Code of the Russian Federation no longer mentions payment for overtime as overtime only in the case of failure to provide additional leave. Why is it still considered correct not to pay for overtime during irregular working hours, but to compensate for it by providing vacation?
Article 152 of the Labor Code of the Russian Federation obliges employers to pay for any overtime work at an increased rate, including work outside the established working hours during irregular working hours.

The provision on irregular working hours contained in employees’ employment contracts must be understood as the right of employers to involve employees in overtime work without complying with the procedures established by Art. 99 Labor Code of the Russian Federation. Involving workers with irregular working hours to work outside the working hours established for them does not require obtaining their written consent or the consent of the body of the trade union organization. Work outside the established working hours, as in the cases listed in parts 2 and 3 of Art. 99, and in all other cases it is carried out only on the basis of an order from the employer, if the employee is assigned an irregular working day.

The inability to refuse to perform work outside the established working hours and the associated inconveniences are compensated by the provision of additional leave of at least 3 calendar days. But the employee’s work itself is subject to payment, and payment at an increased rate, as it is performed under conditions deviating from normal ones.

In general, an employee receives wages for all the time he or she works. If any of these hours are overtime, they will be paid at an increased rate. In addition, all time worked is included in the length of service, which gives the right to annual leave, which is provided to each employee. Meanwhile, an employee with irregular working hours is “traditionally” deprived of money for overtime. Not only does he not receive additional pay for working under conditions that deviate from normal, he does not receive any remuneration for this work at all - only vacation. This state of affairs seems unfair.

The problem under consideration cannot be solved without the participation of the courts. Only a court can give a correct interpretation of the norms of labor legislation regulating the issues of payment for overtime during irregular working hours. The legislator, it seems, has already spoken.
I. Aleksandrov - Lawyer of the Center for Legal and Economic Consultations / "EZh-Lawyer", 2007, N 35

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Irregular working hours are often used by employers to regulate so-called “overtime”, but at the same time it causes a lot of debate.

Employers, as a rule, are confident that irregular working hours are not limited in time. Of course, this is a very common mistake associated with a lack of understanding of the legal standards for work and rest and, at the same time, an unreasonable desire to save on payments from the organization’s payroll fund. That is, the establishment of irregular working hours is a kind of optimization of personnel costs. Of course, this is a convenient position, which is approved by financial controllers, but does not always comply with labor laws.

Meanwhile, last year an attempt was made to limit the number of hours of “overtime” to 120 hours per year, but this moment the relevant legislation is still pending. Moreover, the State Duma Committee on Federal Structure and Issues local government recommended that the lower house of parliament reject this bill.

Let's try to figure out how fair the interpretation of the law on irregular working hours is in favor of the employer in relation to commercial organizations, in which there is most often a temptation to abuse rights on the part of the employer.

HOW LONG IS AN IRREGULAR WORKING DAY?

As we know, the law defines work and rest standards, based on which the work schedule is established for employees. Working conditions during irregular working hours are still an assessment category for the employer. And he often understands an irregular day as having a beginning but no end. Of course, this approach to interpreting the law is beneficial to the employer, but, as a rule, it is disadvantageous to the employee. Does this mean that the truth is on the employer’s side?

In our country, the standard working time is 40 hours per week (Article 91 of the Labor Code of the Russian Federation), that is, with a five-day working week, one day accounts for 8 hours of working time. However, there are cases when this norm can be exceeded without violating the law. Such cases, as we know, include overtime and irregular working hours.

There is a clear limit in the law for overtime work - no more than 120 hours per year. Moreover, it is prohibited to engage an employee in overtime work lasting more than 4 hours for two days in a row. This is due to the fact that during overtime, the balance between work and rest is disrupted, which ultimately leads to ineffective work and unsatisfactory performance results.

Unlike overtime work, there are no such restrictions in relation to irregular working hours, that is, neither the restrictions established by law for engaging in overtime work, nor the guarantees and compensation associated with such work, apply to the work of employees with irregular working hours.

Let's try to figure out why the legislator still allocates irregular working hours as a separate category of excess work, as a kind of special working time regime. According to Art. 97 of the Labor Code of the Russian Federation, work in irregular working hours is work outside the established working hours. That is, we are talking about extra-standard, additional work that goes beyond the working day. The legislator in Art. 101 of the Labor Code of the Russian Federation made a reservation about the occasional involvement in such work, but this did not solve the problem of unfair use of labor. There are currently no criteria or signs of episodicity in regulatory legal acts. And the compensation that an employee receives in return for his excess labor costs is sometimes clearly lower than these labor costs.

We especially note that the introduction of irregular working hours for workers does not mean that they are not subject to the rules determining the start and end times of work, the procedure for recording working hours, etc. 2 These workers are generally exempt from work on weekly rest days and holidays. Therefore, it is possible to attract employees who have irregular working hours to work on their days off and non-working holidays only by applying the provisions of Art. 113 and 153 of the Labor Code of the Russian Federation.

WHO CAN HAVE LONG WORKING DAYS?

The list of positions of employees with irregular working hours is not defined by regulatory legal acts, therefore, as a rule, it is established in the local regulatory act of the employer, for example, internal labor regulations or regulations on recording working hours.

The exception is the establishment of irregular working hours for drivers. So, according to Part 2 of Art. 329 of the Labor Code of the Russian Federation, features of the regime of working time and rest time, working conditions of certain categories of workers, whose work is directly related to movement Vehicle, are established by the Ministry of Transport of Russia.

In accordance with the Regulations on the Peculiarities of Working Hours and Rest Time for Car Drivers, an irregular working day may be established:

Drivers of passenger cars (except taxis);

Drivers of expedition vehicles and survey parties engaged in geological exploration, topographic-geodetic and survey work in the field.

The number and duration of work shifts according to work schedules (shifts) with irregular working hours for drivers are established based on the normal duration working week, and weekly rest days are provided on a general basis.

It should be noted that the irregular working hours regime has interesting features:

It can be set for a specific position, not for structural unit generally;

Involvement in work beyond the standard time must be determined by production necessity;

The types of work performed overtime should not differ from regular work performed within the framework of an employment contract, job description or work instruction.

HOW TO ESTABLISH AN INVENTIONAL WORKING DAY?

The provision for working on irregular working hours must be fixed in the employment contract with the employee. Here is an example formulation:

2.1. The employee is assigned an irregular working day.
2.2. The annual additional paid leave for an employee’s irregular working day is six calendar days.

The local regulatory act that establishes the list of positions with irregular working hours is, as a rule, internal labor regulations (see example).

In order for an employee who has an irregular working day to be involved in extra work, a written or oral order from the employer or his own understanding of the need for this is sufficient. By the way, in order to attract an employee to work overtime, the employer must meet a number of conditions, including obtaining the employee’s consent.

It must be remembered that the employer has the right to involve employees with irregular working hours to work outside normal working hours only to perform work stipulated by the employment contract, and cannot assign other work. That is, if an employee works as a clerk, he cannot be involved in performing the work of a driver or secretary (for this you will already need to conclude an employment contract for part-time work).

Important nuances

1. An employee who has an irregular working day cannot refuse to work outside the working day (shift), if necessary. The employer may regard such a refusal as a failure to fulfill labor duties and subject the employee to disciplinary action.

2. Irregular working hours are episodic involvement in excess work. That is, in order to maintain a balance between working time and rest time, you can work beyond the norm from time to time, and not every day.

3. Performing work in excess of the standard does not mean that it is possible to perform any work not specified in job description. The employee no longer has any more responsibilities; only the time spent on work increases.

4. An undoubted advantage for an employee working irregular working hours is the establishment of additional paid leave of at least three days. This leave can be added to the annual main paid leave or replaced with monetary compensation (at the request of the employee).

5. If you need to establish an irregular working day for a specific employee, you must follow the procedure for documenting such a regime.

6. The established regime of irregular working hours makes it possible to keep an employee at work without registering overtime work and, accordingly, paying it at increased rates.

7. The employer does not need to keep records of overtime and monitor their limits.

8. Irregular working hours do not apply to work on weekends and holidays, only to working days for a specific employee.

9. If an employer abuses the right to engage in work during irregular working hours, the employee may file a complaint with labor inspection or to court (Articles 352, 356, 391 of the Labor Code of the Russian Federation). As a result, systematic overtime may be recognized as overtime work and the employer may be required to pay appropriate compensation. In addition, for violating the rules labor law the employer faces administrative liability under Art. 5.27 of the Code of the Russian Federation on Administrative Offences.

HOW TO REST DURING INCREDIBLE WORKING DAYS?

As we have already noted, overtime under irregular working hours is compensated by the provision of additional days for vacation. The duration of this leave cannot be less than three calendar days, unless a longer duration is established in the local regulations of the organization (Articles 116, 119 of the Labor Code of the Russian Federation; clause 3 of the Rules for providing annual additional paid leave to employees with irregular working hours in federal government institutions).

Counting Rules length of service requirements required to receive additional paid leave for irregular working hours are not established in labor legislation. Traditionally, such length of service is determined by analogy with the length of service for basic paid leave, that is, it includes:

Time of actual work;

The time when the employee did not actually work, but in accordance with regulatory legal acts, collective agreements, agreements, local regulations, and an employment contract, he retained his place of work (position);

The time of unpaid leave provided at the request of the employee, not exceeding 14 calendar days during the working year.

Accordingly, the following is not included in this experience:

The time an employee is absent from work without good reason, including due to his removal from work in cases provided for in Art. 76 Labor Code of the Russian Federation;

Time of parental leave until the child reaches the legal age.

An important point is the possibility of replacing additional leave for irregular working hours with monetary compensation at the request of the employee with restrictions applied to certain categories of employees (Article 126 of the Labor Code of the Russian Federation).

Additional paid leave for irregular working hours or monetary compensation is provided either on the basis of the vacation schedule or upon the written application of the employee. The application is drawn up in any form (unless, of course, its form is approved by the local regulatory act of the organization) and submitted to personnel service in the manner established by the organization.

The text of the application for additional leave may be as follows:

Please provide me with additional annual paid leave for irregular working hours from August 1, 2018 for three calendar days.

If an employee decides to receive monetary compensation instead of additional leave, he can draw up a statement with the following content:

I ask you to replace with monetary compensation 6 calendar days of annual additional paid leave for irregular working hours.

In conclusion, I would like to say that in terms of establishing an irregular working day, a rather free approach to the interpretation of the law has developed. The situation can only be changed by changing the law. Bill 1, mentioned at the beginning of the article, is an attempt to solve the problem of non-standard use of workers’ labor without any accounting and, accordingly, payment. But he only proposes to limit the time by setting a limit on overtime during the year.

The author of this article believes it is advisable to provide categories of employees for whom irregular working hours can be introduced, and considers it reasonable to establish a clear concept of irregular working hours, defining the features that distinguish them from overtime work, since, as we know, employers usually interpret all doubts in their favor.

In addition, according to the author, it would be useful to establish a balance between the labor costs of an employee working in conditions of irregular working hours and the additional leave provided to him, establishing a proportional ratio of the time worked above the standard and compensation for it.

To do this, of course, it is necessary to take into account the employee’s work in the prescribed manner and document this - with an order and a mark on the working time sheet.

Bill No. 134447-7 “On amendments to Articles 101 and 119 of the Labor Code of the Russian Federation in terms of limiting the use of irregular working hours.”

Many workers mistakenly believe that if they are constantly late at work and their working day does not have a clear schedule, then it can be called irregular. In meaning, it is possible, but by law it will be considered as such if a corresponding entry is made in the employee’s employment contract, and along with it additional additional social guarantees, due to employees with official irregular days. Let’s figure out what an irregular worker means in 2019 according to the Labor Code of the Russian Federation. Changes and latest news are further in the article.

Flexible work schedules, overtime work, as well as banal overtime at the will or whim of the employer have little in common with irregular work hours. In accordance with Art. 101 of the Labor Code of the Russian Federation, which contains the corresponding concept, irregular working hours are a special mode of work when an employee remains to work after working day not constantly, as is often practiced at Russian enterprises, but occasionally at the verbal command of the employer. Not any employee can be left “after work”, but only one who occupies a position that, in accordance with the collective agreement or other regulatory act of the employer, is included in the list of positions with irregular working hours.

Flexible hours, long hours, overtime - what's the difference?

As mentioned above, many mistakenly mistake a flexible schedule for an irregular working day, when an employee works the working hours established by the employment contract without a fixed start and finish of the working day, which are determined by mutual agreement (Article 102 of the Labor Code of the Russian Federation). However, these are completely different things. Unlike a flexible work schedule, which is also fixed in the employment contract or additional agreement In addition, irregular working hours have clear boundaries. If the TD states that the employee must start work at 10:00, then he cannot come to work at 12:00, since he has a position with an irregular work day. He must arrive at 10:00, otherwise he risks getting disciplinary action: remark or reprimand from superiors (Article 192 of the Labor Code of the Russian Federation). And for being 4 hours or more late you can even get fired.

Thus, irregular working hours, unlike a flexible schedule, have clear boundaries, but they can be “extended” at the verbal request of the employer. Such requests may be sporadic. The employee's consent to work beyond normal working hours is not required, nor is additional payment required.

The difference between irregular working hours and overtime lies in the payment and the need to obtain the employee’s consent for overtime. Let's take a closer look at the difference.
Irregular working hours:

• does not require a person’s consent to engage him in work outside of working hours;
• not formalized by order (an oral order from superiors is sufficient);
• payment for irregular working hours is not due;
• the number of occasional exits “after work” is not regulated;
• employees are entitled to leave for irregular working hours - the Labor Code of the Russian Federation (Article 119) establishes guarantees in the form of at least three additional days of leave. Naturally, paid. The employment or collective agreement may stipulate more. The days are required to be provided even if the employer did not exercise his right to occasionally involve the employee in work duties outside of normal hours during the year.

Overtime in 2019:

• requires the mandatory consent of the employee, excluding emergency cases;
• executed by a written order from the employer;
• the duration of overtime work cannot exceed 4 hours for 2 consecutive days and 120 hours per year;
• paid at least one and a half times the amount for the first 2 hours and at least
• twice in the following hours;
• Additional leave is not allowed.

As can be seen from the comparison, according to vacation additional days for irregular working hours they are entitled, but for working overtime they are not entitled. The opposite situation occurs with additional payment, which is made only for overtime work.

How is an irregular working day formalized in 2019?

If an employee periodically performs work duties outside of established working hours, this must be reflected in his employment contract (Article 100 of the Labor Code of the Russian Federation). Corresponding notes are also included in the rules. internal regulations not an enterprise where a regulation on irregular working hours should be issued. An employee whose work duties extend over a standard 8-hour working day or over a 10-12 hour day work shift, do not neglect official consolidation irregular days. After all, in addition to praise from management, it also guarantees the employee additional leave for irregular working hours. This should also be written about in the contract with the employee.

How many hours can you overwork?

Lawyers are often asked the question: “An irregular working day is how many hours?” The Labor Code does not regulate the hours of irregular working hours and does not decipher how many total hours an employer can involve an employee in irregular work. However, if the employer is too zealous in its right to involve the employee in performing duties beyond the normal working hours (does this not occasionally, but on an ongoing basis), then this can be recognized as overtime work and “knock out” the due compensation. To do this, you will have to contact the state labor inspectorate and the court. Such cases in judicial practice There is.

We hope that after reading this article about long working hours: “What does this mean?” – you won’t ask anymore.